A Louisiana Plaintiff filed claims of retaliation and hostile work environment based on religion against a medical school board in connection with his termination from the school’s emergency medicine residency program. In support of his claims, Plaintiff retained several experts whom the School challenged under Federal Rule of Evidence 702 and Daubert. One of these was a medical recruiter and employment placement expert.
U.S. District Judge Lance M. Africk wrote in his opinion that Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. To qualify as an expert, the judge said that the witness must have “such knowledge or experience in [his] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth,” quoting a Fifth Circuit decision.
Plaintiff retained medical recruiter and employment placement expert to testify on his ability to become board-certified, his future job prospects including the market demand for emergency medicine physicians, the average age of retirement of emergency medicine physicians, and the salary differences between emergency medicine and urgent care physicians. The School moved to exclude the expert’s opinions, arguing that they were unreliable pursuant to Rule 702 and Daubert.
Plaintiff’s expert had worked in the physician recruitment and placement industry since 1983. She founded and served as the president of her own company that specializes in placing physicians and advanced practitioners in positions with medical groups, hospitals, and other healthcare organizations. The expert recruited and placed physicians in a variety of practice settings, such as in medical groups, solo practices and partnerships, hospitals, universities, academic centers, and national clinics providing specialty services to the public. She was also involved with several trade associations in the physician recruitment industry and has served in various leadership roles for those associations.
The expert, based on her experience in the field of physician recruiting and placement, concluded that because of the competition for specialty emergency medicine residencies and Plaintiff‘s dismissal from the residency program, “it would be unlikely that Plaintiff would be seen as a top contender and able to obtain another Emergency Medicine residency if he chose to apply.”
To reach this conclusion, she relied on her experience in the physician recruitment business, specifically that she has “never worked with a physician who was dismissed from a residency program for cause, and subsequently went on to enter, and successfully complete, residency training in the same or even a different medical specialty.” The expert noted that although Plaintiff could apply to another emergency residency program to complete his residency, “competition is historically keenly fierce for program year one (PGY-1) residency positions if he must start his residency over,” because “there are historically not enough first year residency openings for the number of registrants available, and there are a very limited number of slots available at the second to fourth year level, as those openings occur only if the slot has been vacated by another resident.” In addition to her experience, she also relied on the Association of American Medical Colleges’s 2019 Match Summary report of April 2019 that indicated that 44,608 individuals applied for all medical residency specialties, only 32,194 available residency positions were available, and only 2,458 residency positions were available in the specialty of emergency medicine.
The School argued the expert wasn’t qualified to render her opinion as to whether Plaintiff could transfer to another residency program because she’d never been involved with the selection and ranking of residency applicants. In her deposition, she stated that she had “never been involved in [ranking potential residents],” but that “[her company and employees] are knowledgeable—somewhat knowledgeable of the process[.]” The expert also clarified that she had never worked in human resources in either an academic or medical institution.
Plaintiff didn’t specifically address the School‘s argument that the placement expert wasn’t qualified to testify that he’d likely not be able to secure another residency position in an emergency medicine program, but rather argued that the expert‘s testimony was reliable because “the scope of her expertise is properly aligned with the scope of the opinion she has rendered.”
Judge Africk found the expert wasn’t qualified to testify as an expert on Plaintiff‘s inability to find another position in an emergency medicine residency program. First, the judge found that Plaintiff failed to meet his burden of proof with respect to his attempt to qualify the recruiter as an expert in emergency medicine resident placement or recruitment in emergency medicine residency programs. Plaintiff didn’t demonstrate that the expert had sufficient knowledge, training, education, or skill to offer an expert opinion with respect to Plaintiff‘s chances of being accepted into another emergency medicine residency after having been dismissed from a prior emergency medicine residency. Further, Plaintiff failed to provide any cases in which the expert has been accepted as an expert in medical residency placement.
The judge said that the expert‘s first conclusion that Plaintiff would be unable to obtain a position in another emergency medicine program was also unreliable. The only facts upon which she relied to support her conclusion was the Match Summary report, which indicated that an emergency medicine residency position is competitive. The expert couldn’t opine on Plaintiff‘s inability to obtain another emergency medicine residency position, after being terminated from the residency program, based on the bare fact that emergency medicine residency positions are competitive for students seeking residency positions immediately out of med school, the judge said. The employment expert had no research, or experience with such research, to support her conclusion that because Plaintiff was dismissed from one emergency residency program, it was highly unlikely that he could obtain an emergency medicine residency position in another program.
The employment expert next opined that Plaintiff‘s dismissal from the program “was career-ending in terms of him becoming an emergency medicine physician in most hospitals, due to his lack of residency training completion and his ineligibility to sit for his board exams,” and that had he completed his residency and become board-certified, he would’ve been in high demand as an emergency medicine physician.
Plaintiff specifically relied on the expert‘s testimony to show that (1) he would likely be unable to obtain a position as an emergency medicine physician because he would never be board-certified, and (2) there was a high demand for emergency medicine physicians, but most, if not all, of these positions require board certification. Absent the expert‘s testimony, Plaintiff would allegedly not be able to prove that he fulfilled his duty to mitigate damages by using reasonable diligence to obtain substantially equivalent employment.
The School didn’t dispute that the only way Plaintiff could become board-eligible or-certified in emergency medicine was by successfully completing an emergency medicine residency. Instead, it argued that the expert was unqualified to render an expert opinion to the effect that it was impossible for Plaintiff to obtain a position as an emergency medicine physician in most hospitals without being board-eligible or-certified and that there was a high demand for board-certified emergency medicine physicians. The School argued that the expert‘s opinion as to the qualifications emergency medicine physicians must have to practice emergency medicine was irrelevant and would be confusing to the jury. This was because in her report “she emphasizes that board certification is a de facto requirement to obtaining employment as an emergency physician,” but conceded in her deposition testimony that certification wasn’t a prerequisite to practicing emergency medicine in all hospitals.
Judge Africk found that the record supported a finding that the employment expert was qualified to offer her opinions that most hospitals require emergency medicine physicians to be board-certified and that there was a high demand for emergency medicine physicians. He noted that the expert had worked in the physician recruiting and placement industry for 36 years and owned her own physician recruiting and placement company that placed physicians throughout the country. She offered perspective on the physician recruitment and placement process. She was also involved in her field and connected with other industry members through a number of organizations in which she served, including the National Association of Physician Recruiters (NAPR) and First Choice, Inc. And she was a founding member of NAPR, the national trade association for the industry. These facts, Judge Africk held, were sufficient to show that the expert had professional experience and personal knowledge in the physician recruitment and placement field exceeding that of an ordinary person.
The judge also held that the School‘s challenges to the expert‘s qualifications and lack of specialization went to the weight and credibility of her opinions rather than their admissibility. If the School believed that that the expert‘s opinion was entitled to less weight due to the fact that the majority of her experience was in major metropolitan areas, she had a lack of experience placing emergency medicine physicians, or she wavered in her opinion as to whether Plaintiff was foreclosed from practicing emergency medicine because he would never be board eligible, the School could make that case to the jury at trial.
Judge Africk found that the expert‘s experience qualified her to testify to the demand of emergency medicine physicians and the qualifications that hospitals typically require for emergency medicine physicians. The judge said that she could also use her internet research to support her conclusions at trial if experts in her field would reasonably rely upon those kinds of facts or data in forming an opinion on the subject. The expert relied on 18,000 emergency medicine job advertisements “on a variety of physician and career job boards” to conclude that most hospitals require emergency medicine physicians to be board-certified.
The School contended that the expert‘s research was unreliable because she clarified in her deposition that she and her assistant reviewed, at most, only 300 to 500 of the job postings, and most of the postings didn’t list job requirements. However, when the postings did list job requirements, they included completion of an emergency medicine residency and board certification or eligibility. The School also emphasized the expert‘s note in her report that “the same job opening may be listed on more than one jobsite, which would result in an additional ‘count’ of some jobs,” to support the argument that her research was thereby unreliable.
Plaintiff responded that “there is no requirement that an expert must review every piece of paper in existence that could conceivably relate to her testimony in order for her testimony to be reliable,” and that the expert wasn’t required to review all 18,000 job postings “to support [her] opinion that the job market is open and competitive for board-certified Emergency Room physicians.”
As a recruiter, she was familiar with the demand for physicians and the typical requirements that hospitals demand from applicants, the judge said. Generally, challenges to the sources that inform an expert’s opinion affect the weight of an expert’s testimony rather than its admissibility. Further, the expert noted the limitations of her research in her report, but adequately explained how she arrived at her conclusions. Her searches for the availability of emergency medicine physician positions and the qualifications hospitals typically seek when hiring emergency medicine physicians are proper areas of inquiry, the judge held.
But the judge rejected the attempt by Plaintiff to have the expert testify as to her third conclusion, that emergency medicine physicians typically retire past the age of 60. The expert stated in her report that “[i]n [her company’s] experience, it is common for emergency medicine physicians to practice beyond the age of sixty,” and that her company “continues to receive job inquiries regarding fulltime, part-time, and locum tenens positions from emergency medicine physicians who are in their [sixties].” She also relied on a 2018 report from the Association of American Medical Colleges that found that in 2017, 65.4% of practicing emergency medicine physicians were under the age of 55, 34.6% were over the age of 55, and the median age of retirement for all physicians in all specialties is 65.
The expert provided no indication of how many inquiries she received for emergency medicine physician placements, much less how many she has received for physicians over the age of 60, Judge Africk found. Further, the report she relied upon didn’t conclude that it was common for emergency medicine physicians to practice beyond the age of 60, just that a little over a third of emergency medicine physicians are above the age of 55. The report found that the median age of retirement for all physicians in all specialties is 65, not that the median age of retirement for emergency medicine physicians specifically is 65. The expert‘s anecdotal evidence that some emergency medicine physicians retire past the age of 60 is “of such little weight that the jury should not be permitted to receive [her] opinion, Judge Africk held, quoting a Fifth Circuit decision. The expert‘s opinion, as supported solely by anecdotal evidence, wasn’t only unreliable, but it “would not actually assist the jury in arriving at an intelligent and sound verdict.”
The expert next opined that the average salaries of emergency medicine physicians, who generally must be board-certified, are significantly lower than the average salaries of urgent care physicians, who generally need not be board-certified. She also provided the average range of salaries of emergency medicine physicians compared to urgent care physicians and a chart detailing the trend for compensation of emergency medicine and urgent care physicians. The employment expert complied her data from the Medical Group Management Association (MGMA), American Medical Group Association (AMGA), American College of Emergency Physicians (ACEP), and Merrit Hawkins & Associates (MHA).
The School argued that if the expert‘s reported salaries for emergency medicine physicians were available to physicians who aren’t board-certified (like Plaintiff), the surveys were unreliable and of no assistance to the trier of fact in demonstrating how Plaintiff‘s inability to complete his residency and become board eligible equated to a financial loss.
Judge Africk said that the compensation figures for emergency medicine physicians the expert cited in her report were only relevant if they reflect the compensation of board-certified emergency medicine physicians. Otherwise, as the School argued, they didn’t reflect Plaintiff‘s potential financial loss because the data could include salaries of emergency medicine physicians who are not board-certified, and Plaintiff could obtain these types of positions with similar salaries. Although MGMA reports have been held to be reliable under Daubert and recognized as the industry standard for physician compensation by at least one federal court, Judge Africk found there was no dispute in that case that the salary information available applied to the plaintiff-physician. The employment expert‘s compensation data wouldn’t “assist the trier of fact to understand or determine a fact in issue” unless she could establish that the reported salaries are only for board-certified emergency medicine physicians.
The employment expert testified in her deposition that there was “[n]o way of knowing” whether the reported salaries of emergency medicine physicians in the MGMA data included only board-certified physicians or also non-board-certified physicians. The MGMA data was therefore inadmissible, Judge Africk held. The expert could rely upon the emergency medicine physician salary data from AMGA, ACEP, or MHA, however, if she could establish at trial that such data only included the reported salaries of board-certified emergency medicine physicians.
Thus, the School‘s motions in limine were granted in part and denied in part.